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September 3, 2020

On Monday August 31, the Legislature adjourned for final recess, marking the end of the 2019-2020 legislative session. As we have detailed in previous updates, the 2020 legislative year has been the strangest in modern times.  The COVID-19 pandemic has forced legislators out of the Capitol twice this year, both in the beginning of the stay-at-home order and in July as two Assemblymembers contracted the virus. 

As we reported last week, Republican Senator Brian Jones tested positive for COVID-19, throwing yet another curveball as the Legislature approached the end of session. Because the Republicans had continued to caucus in person and even held an in-person dinner, Senate Leadership prevented members who were exposed to Senator Jones at these events from attending floor session in person. Instead, members of the Republican caucus, with the exception of one Senator who did not attend these gatherings, were forced to stay home and vote remotely through Zoom. 

Since the beginning of the pandemic, both houses have set procedures for remote voting in anticipation for a scenario like this one.  While it has been used in select circumstances, the legality of remote voting has been questioned. It remains to be seen if there will be legal challenges regarding this decision. 

Given the decision to quarantine nearly the entire Senate Republican caucus, tensions in the final days of session were high. The last hours of floor session were characterized by unprecedented conflict between Senate Republicans and Democrats, centered primarily around the fact that Republicans, being quarantined as they were, felt restricted in their ability to participate in the proceedings on the Senate floor. 

As leadership worked to settle these disagreements, business on the Senate floor was delayed, leaving the house in a time crunch to take up the remaining bills on their agenda before midnight. The impacts of this time delay were also felt in the Assembly, whose members must wait for many bills to be sent over from the Senate for final passage. At the same time, both houses were holding bills hostage and Senate Republicans were accused of stalling to run out the clock.

In the end, due to the conflict in the Senate and bill hostage-taking, the clock struck midnight before many bills were heard on the floor on both houses. The bills that did pass out of both houses will be sent to the Governor who will have 30 days to consider the bills for his signature. 

High priority bills that did cross the finish line pertained to employment as the Legislature grappled with the issue of how business can safely operate within the context of COVID-19. The following employment-related bills will be considered by the Governor this month: 

Workers’ Compensation – COVID-19. The issue of workers’ compensation was a dominant issue throughout the 2020 legislative year. Early in the pandemic the Governor issued an Executive Order applicable to essential workers saying that a COVID infection will have been presumed to have occurred at work, with treatment and expenses covered by the employer’s workers’ compensation policy, unless it could be proved that the infection occurred otherwise. This “rebuttable presumption” served as the basis for Senator Jerry Hill and Assemblyman Tom Daly to introduce SB 1159 to provide a rebuttable presumption for workers’ compensation for all employers, both public and private, including those that were previously covered by the Governor’s Executive Order which expired July 5.  

Organized labor countered with two bills to provide a non-rebuttable, “conclusive presumption” that a COVID-19 infection occurred at work.  AB 664 by Assemblyman Cooper would have been applicable to police, fire, and healthcare workers, while AB 196 by Assemblymember Gonzalez would have been applicable to all other employers.

As the legislative session progressed, all three bills moved through the legislative process while negotiations between business, insurers, public agency employers, legislators and the Governor’s office took place.  

As happens with most workers’ compensation deals in the Legislature, no stakeholder walked away completely satisfied.  Labor did not get a “conclusive presumption” but did get enough definitions on who and how one qualifies for a rebuttable presumption that caused many business associations, public school employers, and insurers to oppose the eventual “deal” which was amended into SB 1159.   

SB 1159 barely made the 72-hour constitutional deadline for being in print and did so only by being placed online just hours before the Friday at midnight deadline. The amendments were officially adopted on Sunday afternoon and the bill passed both houses just hours before adjournment on Monday with bipartisan votes.

AB 685 (Reyes) – COVID-19 Exposure and Reporting in the Workplace. Similar to the debate around the need for SB 1159, the Legislature also worked to address workplace reporting of COVID-19 cases. 

This was a priority bill for organized labor who argued that employers are negligently exposing workers to infection and denying information and supplies that would prevent infection. AB 685 started out with very onerous and, by the author’s own admission, impractical obligations placed on employers, including criminal penalties. 

The public and private employer community actively engaged in the negotiations of the bill and were successful in narrowing the definition of what constitutes a “worksite,” removing the 24-hour verbal notice requirement, removing the 90-day rebuttable presumption of retaliation, and removing criminal penalties for violations of the bill’s provisions. However, the broader coalition still found many concerning aspects to the bill and remained opposed.

As it passed to the Governor, AB 685 requires employers to provide written notice and instructions to employees who may have been exposed to COVID-19 at their worksite and enhances Cal/OSHA ability to enforce health and safety standards to prevent workplace exposure to and spread of COVID-19. 

Understanding that some more technical fixes are necessary, and given the time constraints, the author has committed to authoring a cleanup bill next session. It remains to be seen how amenable she will be to changes that are beyond just technical clarifications. 

The bill passed out of the Senate 26-9 and the Assembly 52-1 with only Democrats voting for the bill. 

AB 3216 (Kalra) – Employee Recall and Retention. When this bill was introduced, it contained a laundry list of sweeping changes to sick leave, family leave and other long-sought legislative efforts important to organized labor. Unlike the bills noted above, this bill went through the normal legislative process which caused the author to make concessions at each committee stop.

With time running out, the bill was eventually narrowed to only contain provisions on worker recall and retention in certain industries following layoffs due to the pandemic. 

This bill provides a right of recall and retention rights for workers who have been laid off due to a state of emergency and who work in a hotel, private club, event center, airport, or provide building services to office, retail or other commercial buildings. After negotiating with the author and labor, the business community was able to remove the private right of action associated with the bill’s provisions and make the rehiring process as required by this bill more workable. The bill passed out of the Senate 26-12 and the Assembly 46-16, with only Democrats voting for it and with 16 Assembly Democrats not voting at all. 

SB 1383 (Jackson) – Family Leave. SB 1383 contained the Governor’s proposal on family leave. The bill would reduce the employee threshold for the California Family Rights Act to 5 employees as well as expand the list of family members an employee can take their 12-weeks of unpaid, job-protected leave for. The bill narrowly passed off the Assembly floor with Democrats providing 46 votes to pass it.  Again, some business leaning Democrats did not vote or voted no due to concerns that the bill increases burdens on already struggling small businesses. 

AB 1867 (Committee on Budget) – COVID-19 Supplemental Paid Sick Leave. This proposal was amended into a budget bill vehicle just days before the end of session, narrowly making the previously discussed 72-hour rule. The bill is similar to the Governor’s earlier Executive Order that provided two additional weeks of supplemental sick leave for food sector workers, but this time expands this leave to all workers who work for employers with over 500 or more employees. 

As a companion to SB 1383, the bill also contains provisions that establish a small employer mediation pilot program, which was designed to make SB 1383 more palatable and garner more votes from more moderate Democrats. 

The bill passed out of the Senate 30-9 and the Assembly 59-15. 

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